31 January 2019

At one point in my life, I kept a list of all sorts of phrases and words that would make really good names for a rock band. Now, I never actually played or formed a band– the drama of that seemed exhausting. The fun part was in the naming of the band. As any good marketing professional will tell you, there’s a lot in a name. At the top of that list for some time was the brilliant Latin expression ‘Lex Tallonis.’

Lex Talionis is the legal term usually applied to the biblical exhortation to return punishment for a crime in a way that mirrors the crime itself. It derives from a section which we read in our parashah for this week, Mishpatim. Exodus 21 gives the case of a pregnant woman who was struck and, as a result, experienced a miscarriage. The loss of the pregnancy was its own crime, and we’re told that the offender would need to pay a fine for damages. Yet in the case that the woman was hurt above and beyond the trauma of pregnancy loss, the text reads: “But if any other harm follows, then you shall give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe.” (v. 23-25).

This famous line, ‘an eye for an eye,’ often characterises the sort of objections people have to the Bible– finding in this prescription of criminal law a brutal and unforgiving system which returns violence with violence in an endless cycle of retribution. Yet, among our Sages, this law was never understood literally. Instead, they suggest (Talmud Baba Kamma 83-84) that the law means that one has to pay the monetary value of the lost eye, tooth, etc in financial compensation to the victim.

Fascinatingly, part of what lies behind the debate about how to understand lex talionis is a much more ancient debate. In the Talmud passage cited above, the Rabbis insist that they are correct in interpreting it non-literally, and take the opportunity to slam the ancient Tsedukim (Saducees) who they claim understood it literally, cutting off hands right and left. This already-ancient dispute about ‘retributive justice’ has an even older precedent however, and one that sheds a great deal of light on the Torah’s position.

In the Code of Hammurabi (1750 BCE) we find what appears to be the Saduccee/Literalist position: “If a man puts out the eye of another man, his eye shall be put out. If he breaks another man’s bone, his bone shall be broken. If a man knocks out the teeth of his equal, his teeth shall be knocked out.” The echoes with the language of the Torah (being written at least 700-1000 years later) are profound. But perhaps even more interesting is that contemporaneous with Hammurabi, we also find the Babylonian Laws of Eshmuna (1800 BCE), which say: “If a man bites the nose of another man and thus cuts it off, he shall weigh and deliver 60 shekels of silver; an eye — 60 shekels; a tooth — 30 shekels; an ear — 30 shekels; a slap to the cheek — he shall weigh and deliver 10 shekels of silver. If a man should cut off the finger of another man, he shall weigh and deliver 40 shekels of silver”

Biting off people’s noses certainly seems extreme, but what we see is that the debate between the Perushim (Pharisees/Rabbis) and the Tsedukim (Saducees) was predated by almost two millennia by the Babylonian sources which clearly frame the Torah’s legal system. When the Talmud decided to follow the idea that lex talionis is metaphorical, they were aligning themselves with the Laws of Eshmuna and rejecting the view of Hammurabi’s Code.

Perhaps this should give us some perspective, and more than a little humility. First of all, our objections with the Torah’s text, our desires to read it differently– aren’t just ours. Not only have they been stated already by our Jewish ancestors and by our halakhic tradition, but even the Ancient Near-Eastern precedents which lie behind the Torah’s system contained a debate about how to put these laws into practice! For me, this is some comfort, as it adds a degree of sophistication to a debate that has been ongoing for longer than we can reasonably conceive of.

To those who look at the Torah and immediately react by considering it barbaric, brutal, and irrelevant, the several-thousand year history of debate and discussion around what the ideas within it mean should offer some solace in helping us to realise that we are neither the first, nor likely the last, to raise concerns and debate the meaning of our ancient legal texts. If you’d like to start a band however, you still can be the first to use the very-metal name of lex talionis– as far as I know it’s still available.